UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROCITA M. LAWSON,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0845-14-0588-I-1

DATE: May 31, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rocita M. Lawson, Washington, D.C., pro se.

Michael Shipley, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal of the Office of Personnel Management’s reconsideration

decision denying her request to waive collection of her overpayment as untimely

filed. For the reasons set forth below, the appellant’s petition for review is

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
DISMISSED as untimely filed without good cause shown. 5 C.F.R.

§ 1201.114(e), (g). 

In the July 31, 2014 initial decision, the administrative judge instructed the

appellant that the initial decision would become final on September 4, 2014,

unless a petition for review was filed by that date. Initial Appeal File (IAF),

Tab 6, Initial Decision (ID) at 4-5. On September 3, 2019, roughly 5 years after

the finality date, the appellant filed her petition for review. Petition for Review

(PFR) File, Tab 1 at 23.

A petition for review generally must be filed within 35 days after the date

of the issuance of the initial decision or, if the party filing the petition shows that

she received the initial decision more than 5 days after it was issued, within

30 days after she received the initial decision. Palermo v. Department of the

Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). Here, the appellant

has not alleged that she received the initial decision more than 5 days after it was

issued. PFR File, Tab 1. Thus, the deadline to file a petition for review was

September 4, 2014. Her September 2019 petition for review of the initial

decision was untimely filed by roughly 5 years. ID at 4-5; PFR File, Tab 1. 

The Board will waive the time limit for filing a petition for review only

upon a showing of good cause for the filing delay. Palermo, 120 M.S.P.R. 694,

¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(g). The party who submits an untimely

petition for review has the burden of establishing good cause for the untimely

filing by showing that she exercised due diligence or ordinary prudence under the

particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To

determine whether a party has shown good cause, the Board will consider the

length of the delay, the reasonableness of her excuse and showing of due

diligence, whether she is proceeding pro se, and whether she has presented

evidence of the existence of circumstances beyond her control that affected her

ability to comply with the time limits or of unavoidable casualty or misfortune

that shows a causal relationship to her inability to timely file her petition. Id.

2
In her petition for review, the appellant addressed the untimeliness of her

April 2014 initial appeal, which was dismissed as untimely filed, but not the

untimeliness of her petition for review. PFR File, Tab 1 at 1-6; IAF, Tab 1;

ID at 1. She further attaches documents seemingly addressing the merits of her

initial appeal. PFR File, Tab 1 at 10-21. In an acknowledgment letter dated

September 5, 2019, the Acting Clerk of the Board informed the appellant that her

petition for review was untimely filed, and that an untimely filed petition for

review must be accompanied by a motion to either accept the filing as timely and/

or waive the time limit for good cause. PFR File, Tab 2 at 1-2. The Acting Clerk

provided specific instructions regarding the requirements for such a motion, as

well as a sample “Motion to Accept Filing as Timely or to Waive Time Limit”

form, and allowed the appellant until September 20, 2019, to submit the motion.

Id. at 2, 7-8. Furthermore, the Acting Clerk expressly informed the appellant

that, if she did not timely submit the motion, “the Board [might] issue an order

dismissing [her] petition for review as untimely, which would result in the initial

decision becoming the Board’s final decision.” Id. at 2. 

The appellant did not respond to the Acting Clerk’s letter in the allotted

time, and never provided any such motion. Rather, the appellant submitted a

request to withdraw her petition for review. PFR File, Tab 4. The Acting Clerk

informed the appellant that, pursuant to agency policy, the Office of the Clerk of

the Board was unable to grant the withdrawal of a petition for review that was

untimely filed, and that the Board would address her request following restoration

of a quorum. PFR File, Tab 6 at 1. 

An appellant’s relinquishment of her right to appeal to the Board must be

by clear, unequivocal, and decisive action. Rosso v. Department of Homeland

Security, 113 M.S.P.R. 271, ¶ 9 (2010). However, we need not reach that issue,

as we find her petition for review was untimely filed without good cause shown.

The appellant’s roughly 5-year delay in filing in this case is significant.

See Wirzberger v. Department of the Treasury, 101 M.S.P.R. 448, ¶ 8 (2006)

3
(finding that a year-long delay in filing a petition for review was significant),

review dismissed, 212 F. App’x 965 (Fed. Cir. 2006). Because the appellant has

not shown that she exercised due diligence or ordinary prudence under the

particular circumstances of the case, her petition for review must be dismissed as

untimely filed without good cause shown. 

Accordingly, we dismiss the petition for review as untimely filed. This is

the final decision of the Merit Systems Protection Board regarding the timeliness

of the petition for review. The initial decision remains the final decision of the

Board regarding the untimeliness of her initial appeal. 

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

2

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

4
(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

6
Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

3

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

7
Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

8